FILED

United States Court of Appeals

Tenth Circuit
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

May 9, 2014
Elisabeth A. Shumaker
Clerk of Court

THERESA WELCH,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

No. 13-1195
(D.C. No. 1:12-CV-00818-CMA)
(D. Colo.)

Respondent - Appellee.
ORDER AND JUDGMENT*

Before PHILLIPS, PORFILIO, and BALDOCK, Circuit Judges.

Theresa Welch appeals the district courts order affirming the Commissioners
decision denying her application for disability insurance benefits. We have
jurisdiction under 28 U.S.C. 1291 and 42 U.S.C. 405(g), and we affirm.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.

I.

BACKGROUND

Ms. Welch applied for disability benefits in 2008 for right shoulder and neck
impairments stemming from a work accident in 2005. She alleged an onset date of
January 1, 2005, and was eligible through the date she was last insured for benefits,
March 31, 2008. Her application was denied. Ms. Welch then requested a hearing
before an administrative law judge (ALJ), which was held in 2010.
Following the hearing, the ALJ found Ms. Welch had the severe impairments
from a disc bulge at C5 and C6 vertebrae, right shoulder pain, thrombocytosis,
depression, and drug and alcohol abuse. Based on these impairments, the ALJ found
that Ms. Welch had the residual functional capacity (RFC) to perform light work
with certain limitations: she could only occasionally push and pull with her upper
extremities, needed to avoid reaching overhead, and was limited to simple and
unskilled work with one-, two-, or three-step instructions.
Despite finding that Ms. Welchs limitations prevented her from performing
her past work at step four of the five-step evaluation process, the ALJ found at step
five that she could perform other work that exists in significant numbers in the
economy. See Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (describing
five-step sequential process). Thus, the ALJ concluded that Ms. Welch was not
disabled. Ms. Welch appealed, but the Appeals Council denied review and the
district court affirmed the ALJs decision. Ms. Welch now appeals to this court,
arguing that the ALJ (1) failed to properly determine her RFC and (2) improperly
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erred at step five by relying on the vocational experts answer to the ALJs
hypothetical.
II.

DISCUSSION

We review the Commissioners decision to determine whether the ALJs

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161
(10th Cir. 2012) (internal quotation marks omitted). Substantial evidence is more
than a mere scintilla and is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion. Flaherty v. Astrue, 515 F.3d 1067, 1070
(10th Cir. 2007) (internal quotation marks omitted). In determining whether
substantial evidence supports the agencys decision, we examine the record as a
whole but we do not reweigh the evidence. Id.
A. RFC Determination
1. Medical Evidence
Ms. Welch first argues that the ALJ failed to explain the weight she gave to
the medical opinions of Drs. Sramek, Schulze, and Young. Medical opinions are
statements from . . . medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and prognosis,
what you can still do despite impairment(s), and your physical or mental
restrictions. 20 C.F.R. 404.1527(a)(2). However, as the Commissioner points out,
none of the physicians Ms. Welch identifies provided medical opinions about her
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that, given her impairments, the ALJ was required to weigh. Rather, each physician
simply diagnosed her impairments and in some cases recommended treatment for
them.
For example, Dr. Sramek stated Ms. Welch had right neck pain, numbness
and weakness in [her] C5 and C6 distributions, and recommended surgery as a result
of those symptoms. Aplt. App. Vol. I at 225. Dr. Sramek also noted Ms. Welchs
reported pain and her psychological issues with mood changes, sleep disturbance, and
difficulty coping. Dr. Young noted her neck and shoulder pain, as well as her high
platelet count (thrombocytosis) that required cancelling her scheduled neck surgery.
Dr. Schulze likewise noted her thrombocytosis and a rotator cuff tear, and advised
surgery. None of the physicians, however, opined on Ms. Welchs limitations
resulting from her impairments except that Drs. Sramek and Schulze excused
Ms. Welch from working for short periods of time.1 As to the impairments
themselves, the ALJ appropriately addressed each one and incorporated limitations
based on them into her RFC finding. We therefore find no error in the ALJs not
weighing the physicians opinions. See Cowan v. Astrue, 552 F.3d 1182, 1189
(10th Cir. 2008) (finding doctors statement providing no information about the
nature and severity of the claimants physical limitations or the activities he could
still perform was not a medical opinion).
1

Specifically, Dr. Sramek wrote that Ms. Welch could not work from March
2005 through May 2005, and Dr. Schulze wrote that she could not work in June 2005.
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We also find no merit in Ms. Welchs contention that the ALJ ignored her need
for surgery when she assessed her RFC. On the contrary, the ALJ twice noted that
Ms. Welch had been scheduled for surgery but that the surgery was postponed due to
her elevated platelet count. Aplt. App. Vol. I at 20, 23. We are thus satisfied that
the ALJ properly considered the need for surgery when she gave careful
consideration of the entire record in determining Ms. Welchs RFC. Id. at 23.
2. Credibility Assessment
Ms. Welch additionally argues that the ALJ improperly relied on treatment
gaps and inconsistencies between the medical evidence and her stated activities of
daily living to find that the alleged intensity of her stated limitations was not fully
credible. But the medical record indeed shows gaps in Ms. Welchs treatment
records, specifically from August 2007 until September 2008, which Ms. Welch
does not dispute. The record also shows that Ms. Welch testified she could do light
yard work, light chores, light cooking, grocery shop, drive, and visit her family
despite her impairments. Lack of treatment and a claimants daily activities are both
proper considerations as part of a credibility determination. See Barnett v. Apfel,
231 F.3d 687, 690 (10th Cir. 2000); Wilson, 602 F.3d at 1146. Thus, the ALJ
adequately tied her credibility finding to substantial evidence in the record. Given
the deference we accord credibility determinations that are supported by substantial
evidence, see Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1302 (10th Cir. 2011),
we must conclude the ALJs credibility determination was not improper.
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3. Combined Effects of Impairments

Ms. Welch additionally contends the ALJ failed to consider the combined
effects of all her non-severe impairments with her severe impairments. She
specifically points to such non-severe impairments as gastrointestinal problems,
chronic pain, a hernia, chest pain, post-traumatic stress disorder (PTSD), and
suicidal tendencies. However, Ms. Welch does not identify how any of these
impairments affected her functioning during the time she claims she was disabled,
either individually or in combination with each other. See 20 C.F.R. 404.1512(c).
Further, there was no other medical evidence that these complications restricted her
ability to work. Thus, even if the ALJ did err, such error is harmless because
Ms. Welch fails to identifyand we do not discernany resulting prejudice.
4. Mental Impairments
Ms. Welch argues the ALJ should have ordered a consultative psychological
evaluation because her suicide attempt in 2010 should have indicated to the
Commissioner a reasonable possibility of the existence of a disability.
See Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (holding that an ALJ
should order a consultative evaluation when a reasonable possibility of the existence
of a disability exists and the evaluation would materially assist resolving the issue of
disability). An ALJ is obligated to order a consultative evaluation only when the
medical sources on record are insufficient to allow the ALJ to make a disability
determination. 20 C.F.R. 404.1517. Here, the ALJ noted Ms. Welch possessed a
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record that was fully developed with records from treating sources, thus allowing
the ALJ to make a disability determination without the use of an evaluation.
Aplt. App. Vol. I at 18. The record included numerous psychological diagnoses and
treatments, including for depression and anxiety, which were both accounted for in
the ALJs RFC. Further, the ALJ also reasoned that an evaluation conducted over
two years after the date last insured would shed little light on Ms. Welchs status
during the relevant time period. Aplt. App. Vol. I at 17. It is evident that the ALJ
possessed record evidence sufficient to make a disability determination and would
not have been materially assisted by a consultative evaluation.
Ms. Welch also contends that the Commissioner erred by failing to assess her
PTSD. She claims that, although her PTSD was not diagnosed until two years after
her date last insured, the origins of her PTSD go back to sexual assaults that
occurred in 2007 and her accident in 2005. She asserts that the Commissioner
improperly rejected the opinion of Dr. Robbins, who diagnosed her with PTSD in
2010. Dr. Robbinss August 2010 PTSD diagnosis was not before the ALJ but was
submitted to the Appeals Council, which denied review. The Commissioner,
meanwhile, argues that Ms. Welchs argument is unavailing because Dr. Robbinss
opinion does not change the weight of the evidence both because it is unreliable or
inaccurate and because there is no evidence Ms. Welch had PTSD before the date
she was last insured. We agree.

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There is nothing in the record gathered before the date Ms. Welch was last
insured that suggests Ms. Welch suffered from PTSD. While she undoubtedly
suffered from psychological problems such as depression and anxiety, none of the
doctors who evaluated her mental health mentioned anything about PTSD before
2010. It is true Dr. Robbins stated that the likely beginning effective date for
Ms. Welchs limitations, including those induced by PTSD, was August 2006.
Id. at 528. But in the same report, Dr. Robbins wrote that the traumatic event which
caused Ms. Welchs PTSD did not occur until July 2007, exhibiting an inconsistency
in her opinion. Moreover, Dr. Robbinss report was not created until two years after
the relevant time period ended (and after the ALJ issued her decision). We may
conclude the Appeals Council erred in denying review based on the new evidence
only if the new evidence provides a basis for changing the ALJs decision.
See ODell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994). Here, given the lack of
more chronologically relevant evidence of PTSD and the fact that the RFC
accounted for Ms. Welchs mental limitations, we cannot say that the evaluation
required a change in the outcome. The Commissioner was therefore reasonable in
deciding to affirm the ALJs findings despite the results of Dr. Robbinss
psychological evaluation.
B. Step Five

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At step five of the sequential process, an ALJ is required to consider whether,

given a claimants background and RFC, the claimant can perform other work that
exists in significant numbers in the national economy. See 20 C.F.R. 404.1520(g).
Ms. Welch argues that the ALJ was not justified in relying on the vocational experts
answers to the ALJs hypothetical because the hypothetical did not accurately capture
all of Ms. Welchs impairments. But we have already affirmed the ALJs findings
regarding the nature and extent of Ms. Welchs impairments in rejecting her
challenges to the ALJs RFC determination. And the ALJs hypothetical question
included an accurate recitation of Ms. Welchs limitations. Because these findings
are adequately reflected in the ALJs hypothetical inquiries to the vocational expert,
the experts testimony provided a proper basis for adverse determination of this
case. See Gay v. Sullivan, 986 F.2d 1336, 1340-41 (10th Cir. 1993) (citation
omitted).
The judgment of the district court is affirmed.

Entered for the Court

Gregory A. Phillips
Circuit Judge

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